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Florida Court Addresses Rear-End Presumption and Loss of Consciousness Defense

Tampa, Fla. (June 30, 2021) - Florida’s rear-end presumption rule and the loss of consciousness defense, in car accident cases, was recently the focus of a Third District Court of Appeals decision in Hernandez v. Mishali, 46 Fla. L. Weekly D1016 (Fla. 3d DCA May 5, 2021). In that case, the court held that in order to establish this particular defense, a defendant must prove that a loss of consciousness occurred before the purported negligent conduct, and that the loss of consciousness was both sudden and unforeseeable. See Marcum v. Hayward, 136 So. 3d 695, 697-98 (Fla. 2d DCA 2014).

In Hernandez, the defendant admitted his vehicle rear-ended the plaintiffs’ vehicle, but asserted he was not negligent because he suffered a sudden and unexpected loss of consciousness prior to the collision. The jury ultimately rejected the defendant’s defense and found in the plaintiffs’ favor. However, the trial court granted the defendant’s motion to set aside the jury verdict and held that the plaintiffs lacked competent substantial evidence to refute or disprove the defendant’s loss of consciousness affirmative defense.

The plaintiffs appealed and argued competent substantial evidence existed to support the jury’s verdict as well as its rejection of defendant’s defense. On appeal, the Third District Court of Appeals found that the jury was presented with disputed and conflicting evidence as to the defendant’s loss of consciousness defense. As a result, the Court of Appeals held that the jury reasonably rejected the defendant’s loss of consciousness affirmative defense, inferred that the defendant acted negligently by not avoiding the collision, and reinstated the jury’s verdict in the plaintiffs’ favor.

The key takeaways from Florida law on this topic are as follows:

  1. In Florida rear-end collision cases, there is a presumption that the rear driver was at fault. However, the rear-end presumption is rebuttable;
     
  2. Florida courts generally recognize four situations that can rebut the rear-end presumption: (1) a mechanical failure in the rear driver's vehicle; (2) the lead driver's sudden stop; (3) the lead driver’s sudden lane change; and (4) the lead driver's illegal or improper stop (see Fonger v. Nall, 286 So. 3d 332, 333 (Fla. 5th DCA 2019);
     
  3. Florida courts have also recognized that a defense of sudden and unexpected loss of consciousness can overcome the rear-end presumption; and
     
  4. The rear-end presumption rule is not dispositive. Even if a rear driver is able to overcome the rear-end presumption, it does not necessarily mean one can prevail on summary judgment. Florida is a pure comparative negligence state, which allows situations where more than one person can be found negligent, so even if a rear driver overcomes the presumption, the case could still go to a jury for apportionment of liability.

For more information on this case, please contact the authors or editor of this alert. Visit our General Liability and National Trial Practice pages to learn more about our trial capabilities.

Authors:

John A. Rine, Managing Partner - Tampa, FL

Halah M. Elchorbagy, Associate

Editor:

Joelle Nelson, Partner

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